Wis. Stat. § 968.31 – Electronic Eavesdropping and Recording (“Electronic Surveillance and Control Law”)

  1. Introduction

    As a general matter, Wisconsin § 968.31 criminalizes the intentional interception, use, disclosure, or alteration of any wire, electronic, or oral communication. Any person whose wire, electronic or oral communication is intercepted, disclosed, or used in violation of this criminal statute may bring a civil suit. However, Wisconsin is a one-party consent state, meaning that communications can be recorded even if one party does not know about the recording, so long as the recording party does not intent to commit a crime or tort with the conversation. Both civil and criminal actions are authorized.

  2. Text of the Statute(s)

    Wis. Stat. § 968.31 is available here.

    (1) Civil Cause of Action: Any person whose wire, electronic or oral communication is intercepted, disclosed or used in violation of ss. 968 to 968.37 shall have a civil cause of action against any person who intercepts, discloses or uses or procures any other person to intercept, disclose, or use, the communication, and shall be entitled to recover from any such person:

    (a) Actual damages, but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;

    (b) Punitive damages; and

    (c) A reasonable attorney’s fee and other litigation costs reasonably incurred.

  3. Cases

    1. Desnick v. Am. Braod. Cos., Inc., 44 F.3d 1345 (7th Cir. 1995)

      • Procedural Posture: Appeal of defendants’ successful motion to dismiss.

      • Law: Among others, Wis.Stat. § 968.31(2)(c).

      • Facts: An ophthalmic clinic and two of its surgeons brought, among other claims, claims for illegal wiretapping and defamation under Wisconsin law against a television network and others involved in an investigative-reporting broadcast that suggested the ophthalmic clinic’s doctors improperly recommended cataract surgery and engaged in other fraudulent behavior. The district court dismissed the plaintiffs’ complaint.

      • Outcome: The Seventh Circuit affirmed the trial court’s dismissal of plaintiffs’ electronic eavesdropping claim because although the broadcast was allegedly defamatory, there was no evidence that the recordings were made for the purpose of accomplishing that tort. Federal and state wiretapping statutes only provide for liability where the defendants make electronic recordings without the plaintiff’s consent in order to commit a crime or a tort. There was no evidence that the investigative reporting was undertaken in order to defame the plaintiffs or commit a crime.

    2. Terry v. Journal Broad. Corp., 351 Wis. 2d 479 (Wis. Ct. App. 2013)

      • Procedural Posture: Plaintiff appealed grant of summary judgment in favor of defendant

      • Facts: A news station aired a story stating that the plaintiff local wedding videographer was running a “scam” and not providing products she promised to consumers. The broadcast included a recording of the plaintiff stating “end of interview,” putting her hand over the camera, and making a throat cutting gesture, as well as subsequent footage of the plaintiff’s son forcibly removing the news station’s staff from the plaintiff’s home. The plaintiff brought suit against the news station’s staff for, among other things, invasion of privacy, libel, and misappropriation under Section 968.41. The circuit court dismissed these claims on defendants’ motion for summary judgment, and plaintiff appealed.

      • Outcome: The Wisconsin appellate court affirmed the trial court’s grant of summary judgment in favor of the defendant where the plaintiff had no reasonable expectation that a news crew would not record her despite her request that they cease recording where plaintiff knew that the news crew was recording her.

      • Special Notes: This case suggests that if a subject knows she is being recorded, there is no violation of this statute even if a party indicates she does not wish to be recorded any longer.